Krüsemann and Others v TUIfly GmbH (2018) C-195/17 CJEU
European Court of Justice, Third Chamber
Facts
The Third Chamber dealt with a number of joint cases together. The common facts of these cases were described as follows:
6. The applicants in the main proceedings all made bookings with TUIfly for flights to be operated by that carrier between 3 and 8 October 2016.
7. As is apparent from the orders for reference, all those flights were cancelled or were subject to a delay equal to or in excess of three hours upon arrival due to an exceptionally high number of absences on grounds of illness amongst TUIfly staff, following the notification on 30 September 2016 by that air carrier’s management to its staff of company restructuring plans.
8. It is also apparent from those decisions that, although usually the rates of staff absenteeism due to illness among TUIfly staff is in the order of 10%, between 1 October 2016 and 10 October 2016 that rate underwent a significant increase of 34% to 89% in the case of cockpit crew staff members and of 24% to 62% in the case of cabin crew staff members.
9. Accordingly, from 3 October 2016, TUIfly fully abandoned its initial schedule of flights, while making sub-chartering arrangements with other air carriers and recalling staff members who were on leave.
10. However, because of the absences among its staff, 24 flights were significantly delayed on 3 October 2016. On 4 October 2016, 29 flights also incurred a long delay and 7 flights were cancelled. From 5 October 2016 onwards, a large number of flights were cancelled. On 7 and 8 October 2016, all flights departing from Germany were cancelled by TUIfly.
11. On the evening of 7 October 2016, the management of TUIfly informed its staff that an agreement had been reached with the staff representatives.
12. In view of that situation which it classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004, TUIfly refused to pay the applicants in the main proceedings the compensation provided for in Article 5(1)(c)(iii) and Article 7 of Regulation No 261/2004, as interpreted by the Court.
Issue(s)
13. In Cases C-195/17, C-197/17 to C-203/17, C-226/17, C-228/17, C-274/17, C-275/17, C-278/17 to C-286/17, C-290/17 and C-291/17, the referring court, the Amtsgericht Hannover (Local Court, Hanover, Germany), notes that, according to German case-law, the illness of a crew member, at least where it is not due to an external act of sabotage perpetrated by a third party, and the need to replace him do not constitute ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.
14. While questioning whether to classify the circumstances which gave rise to the disputes brought before it as ‘extraordinary circumstances’, in so far as those situations concern rates of absenteeism which are not typical of the normal activity of an air carrier, but occur, as contended by the defendant in the main proceedings, inter alia in cases of ‘wildcat strikes’ or of a call by staff members themselves for a boycott, that court nonetheless takes the view that it must be concluded in the present case that there were no ‘extraordinary circumstances’.
15. On the one hand, the referring court notes that the air carrier in question in the main proceedings may have contributed to the rate of absenteeism by announcing measures to restructure the undertaking. On the other, while the majority of the German courts accept that both internal and external strikes constitute ‘extraordinary circumstances’, in the dispute before the Amtsgericht Hannover (Local Court, Hanover), the absence of staff resulted from an appeal to some of the staff members of the air carrier concerned to go on sick leave, and was not formally issued by a trade union. Such a social movement can therefore be distinguished from an official strike and should be treated as a ‘wildcat strike’, which is not covered by freedom of association.
16. Furthermore, if the circumstances relating to the disputes before the referring court must be classified as ‘extraordinary circumstances’, that court questions whether those circumstances must be accepted only in respect of flights that they have affected or may also be recognised for flights scheduled after the ‘extraordinary circumstances’ prevailed, thus allowing the air carriers concerned to refuse compensation to passengers on flights affected by any subsequent rescheduling of flights carried out after those ‘extraordinary circumstances’ prevailed.
Discussion
38. In the present case, it is apparent from the file submitted to the Court that the ‘wildcat strike’ among the staff of the air carrier concerned has its origins in the carrier’s surprise announcement of a corporate restructuring process. That announcement led, for a period of approximately one week, to a particularly high rate of flight staff absenteeism as a result of a call relayed not by staff representatives of the undertaking, but spontaneously by the workers themselves who placed themselves on sick leave.
39. Thus, it is not disputed that the ‘wildcat strike’ was triggered by the staff of TUIfly in order for it to set out its claims, in this case relating to the restructuring measures announced by the management of that air carrier.
40. As correctly noted by the European Commission in its written observations, the restructuring and reorganisation of undertakings are part of the normal management of those entities.
41.Thus, air carriers may, as a matter of course, when carrying out of their activity, face disagreements or conflicts with all or part of their members of staff.
42. Therefore, under the conditions referred to in paragraphs 38 and 39 of this judgment, the risks arising from the social consequences that go with such measures must be regarded as inherent in the normal exercise of the activity of the air carrier concerned.
43. Furthermore, the ‘wildcat strike’ at issue in the main proceedings cannot be regarded as beyond the actual control of the air carrier concerned.
44. Apart from the fact that the ‘wildcat strike’ stems from a decision taken by the air carrier, it should be noted that, despite the high rate of absenteeism mentioned by the referring court, that ‘wildcat strike’ ceased following an agreement that it concluded with the staff representatives.
45. Therefore, such a strike cannot be classified as an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation No 261/2004, releasing the operating air carrier from its obligation to pay compensation pursuant to Article 5(1)(c) and to Article 7(1) of that regulation.
46. That finding is not called into question by the fact that the social movement should be regarded as a ‘wildcat strike’ within the meaning of the applicable German social legislation, as it was not officially initiated by a trade union.
47. Making a distinction between strikes which, under applicable national law, are legal and those which are not in order to determine whether they should be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004 would make the right to compensation of passengers dependent on the social legislation specific to each Member State, thereby undermining the objectives of Regulation No 261/2004, referred to in recitals 1 and 4, which are to ensure a high level of protection for passengers as well as equivalent conditions for the exercise of the activities of air carriers on the territory of the European Union.
48. In the light of the foregoing, the answer to the first two questions in Cases C-195/17, C-197/17 to C-203/17, C-226/17, C-228/17, C-274/17, C-275/17, C-278/17, C-286/17 to C-290/17 and C-291/17 and to the questions in Case C-292/17 is that Article 5(3) of Regulation No 261/2004, read in the light of recital 14 thereof, must be interpreted as meaning that the spontaneous absence of a significant part of the flight crew staff (‘wildcat strikes’), such as that at issue in the disputes in the main proceedings, which stems from the surprise announcement by an operating air carrier of a restructuring of the undertaking, following a call echoed not by the staff representatives of the company but spontaneously by the workers themselves who placed themselves on sick leave, is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision.
Useful for
Internal strike of an air carrier's own staff is not an extraordinary circumstance under EU261
Treaty provisions considered
No treaty provisions considered.Legislation considered
EU Regulation 261/2004/Key subjects or concepts
Extraordinary Circumstances/ Local Law on Consumers/Appeals history
No relevant appeals or appeal history identified for this case.Other case information
Lawyers or counsel before the European Court of Justice, Third Chamber:No counsel or legal team identified for this case.
Additional case references or citations:
Sometimes cited as joined cases C-195/17, C-197/17 to C-203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 to C-286/17 and C-290/17 to C-292/17. See also ECLI:EU:C:2018:258.
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